House bill 18-1243, also known as the Colorado Civil Rape Shield bill, was recently signed into law by Governor Hickenlooper. This bipartisan rape shield law was sponsored by Democratic Representative Mike Foote and Republican Representative Cole Wist. It seeks to limit how much of the sexual history of a victim can be used as evidence in a civil sexual assault case. Current rape shield laws protect a victim’s sexual history from being used as evidence in a sexual assault criminal case. This law would extend those protections to civil cases.
Maass Law attorney Pamela Maass brought forward the need for consistency in the state’s law to Representative Foote and proposed the civil rape shield bill. Maass Law is pleased that our state legislature and governor have spoken on this important issue, in furtherance of the goals of holding offenders and institutions responsible for sexual misconduct by encouraging reporting and preventing a defendant’s reliance on stereotypes and myths to escape accountability.
What is a Rape Shield Law?
A rape shield law is a law that prevents defense attorneys from using a victim’s previous sexual history as evidence against the crime of sexual assault. These laws were adopted by many states in the late 1970s and 1980s, but each state set their own scope of what sexual history could be shielded and what sexual history would not be shielded. In 1994, the Violence Against Women Act created a federal rape shield law.
The benefit of these laws was to protect sexual assault and rape victims from being smeared by their attackers. Prior to these laws defendants would paint immoral pictures of the victims and smear their reputations in the community. This resulted in extreme humiliation and embarrassment and prevented many rape survivors from coming forward and pressing charges against their attackers. Lawmakers acknowledged that the sexual history of a victim was irrelevant to a sex crime trial.
In the past, defendants have challenged rape shield laws by arguing that they violated the right to confront one’s accuser. They also argued that these laws discriminated unfairly. Overwhelmingly, however, courts have continued to reject these challenges and rape shield laws have been upheld.
Colorado's Rape Shield Laws
In Colorado, the rape shield law presumes that evidence of a victim’s sexual conduct is irrelevant in criminal proceedings. There are some exceptions, however. Defendants are allowed to show evidence of a victim’s prior or subsequent sexual conduct with the defendant. Defendants are also allowed to cite sexual activity that shows evidence that the act of rape was not committed by the defendant.